JUDGMENT : Sandeep Sharma, J. 1. Instant criminal revision petition filed under Section 397 read with Section 401 CrPC is directed against judgment dated 29.12.2010 passed by the learned Sessions Judge, Shimla in Criminal Appeal No. 24-S/10 of 2008, affirming judgment /order of conviction dated 22.5.2008/26.5.2008, passed by learned Judicial Magistrate 1st Class, Court No. 2, Shimla in case No. 42/2 of 2000/96, whereby the learned trial Court, while holding petitioner-accused (‘accused’ hereafter) guilty of having committed offence punishable under Sections 279 and 304A IPC, convicted and sentenced him to undergo imprisonment for a period of three months for the commission of offence punishable under Section 279 IPC, for a period of six months for commission of offence punishable under Section 304A IPC. 2. Briefly stated the facts, as emerge from the record are that Shri Kanshi Ram, (PW-3) reported to the police that on 3.11.1996 at about 11.25 am, while he was at some distance from Police Station, a young man was noticed on the wheels of Maruti Van No. HP-02-4757, who had suddenly turned the van in front of Gurdwara, in a rash and negligent manner and ran over a pedestrian. The van mounted on the pavement abutting highway, and struck against upper wall and then stopped. The pedestrian succumbed to the injuries. On the basis of aforesaid complaint, police recorded statement of complainant under Section 154 CrPC, upon which FIR Ext. PW-11/A was registered against accused in the Police Station, Chhota Shimla. After completion of investigation, police presented the Challan in the competent court of law under Sections 279 and 304A IPC. Learned trial Court, after finding prima facie case against accused, framed charge under Sections 279 and 304A IPC, against accused, to which he pleaded not guilty and claimed trial. Subsequently, learned trial Court vide judgment/order dated 22.5.2008/26.5.2008, held petitioner guilty of having committed offence punishable under Sections 279 and 304A IPC and accordingly convicted and sentenced him as described herein above. Accused being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by learned trial Court, preferred an appeal before the learned Sessions Judge, Shimla, which came to be registered as Criminal Appeal No. 24-S/10 of 2008, However, the fact remains that the appeal was dismissed, as a result of which, judgment/order of conviction passed by learned trial Court, came to be upheld. Hence this criminal revision by the accused, seeking his acquittal after setting aside judgments/order passed by learned Courts below. 3. Mr. Peeyush Verma, learned counsel representing the accused, vehemently argued that the impugned judgments/order passed by the learned Courts below are not sustainable in the eyes of law as the same are not based upon correct appreciation of evidence adduced on record by the prosecution. Mr. Verma, while inviting attention of this Court to the impugned judgments passed learned Courts below, vehemently argued that bare perusal thereof suggests that same are not based upon correct appreciation of record and both the learned Courts below have fallen in grave error while not appreciating the evidence its right perspective, as a result of which, erroneous findings have come on record, to the detriment of the accused, who is admittedly an innocent person. Mr. Verma, further contended that learned appellate court below, while upholding judgment passed by learned trial Court, misconstrued and misappreciated the provisions of Sections 279 and 304A IPC, which has resulted in miscarriage of justice because, bare reading of allegations made against accused, even if assumed to be correct, do not constitute any offence under Sections 279 and 304A IPC and as such, there existed no prima facie case against accused as such judgments of courts below being erroneous deserve to be set aside. While inviting attention of this Court to the evidence led on record by the prosecution, Mr. Verma, contended that both the learned Courts below failed to take note of the fact that none of the witnesses established identity of accused, responsible for alleged occurrence. He further contended that PW-5 Avinash Kumar, nowhere supported the case of prosecution and instead categorically deposed that deceased Jia Lal Sharma, was hit by some bus. Mr. Verma, further contended that in view of candid statement having been made by PW-5 Avinash Kumar, no reliance could be placed by the learned Courts below on the statement of PW-3 Kanshi Ram. Mr. Verma, contended that version put forth by the PW-3 is highly improbable and doubtful in view of the statements having been made by PW-13, wherein he categorically stated that the site of occurrence is/was not visible from the stairs, as such, adverse inference ought to have been drawn against prosecution and benefit of same was required to be given to the accused. While concluding his arguments, Mr.Verma contended that none of the prosecution witnesses has stated anything specific with regard to rash and negligent driving of accused, as such, he could not be charged under Sections 279 and 304A IPC. While placing reliance upon judgment passed by this Court in State of H.P. Vs. Manpreet Singh, Latest HLJ 2008 (HP) 538, Mr. Verma, contended that onus was upon prosecution to prove rash and negligent driving by the accused, which, it has miserably failed to do. He further contended that mere fact that death was caused in the accident, is/was not sufficient to conclude that at the relevant time, vehicle in question was being driven in a rash and negligent manner by the accused. 4. He further contended that rash and negligent driving is/was required to be established by prosecution and can not be automatically presumed on the principle of res ipsa loquitur, because mere driving vehicle at a high speed can not be construed to be negligent or rash driving on the part of driver. In this regard, he placed reliance upon judgment passed by the Apex Court in State of Karnataka v. Satish, (1998) 8 SCC 493 . Mr. Verma, further contended that the doctrine of res ipsa loquitur can only be applied if direct evidence with regard to accident is not available on record. He placed reliance upon judgment of Apex Court in Ravi Kumar v. State of Rajasthan, (2012) 9 SCC 284 . Mr. Verma, while referring to the evidence led on record by the prosecution forcefully contended that both the learned Courts below erred in law by assuming that the accused was driving rashly or negligently and on account of rash and negligent driving, one person died, because, on the basis of aforesaid evidence, as led on record by the prosecution, it can not be said that prosecution proved its case beyond reasonable doubt. Lastly, Mr. Verma, contended that in case, aforesaid submissions having been made by him, do not find favour with this Court, in that eventuality, benefit of Probation of Offenders Act, may be extended to the accused, who is admittedly a first offender. He further stated that more than 20 years have passed after alleged incident and during this period, accused has always remained under trauma, as such, he has already undergone agony of trial. He further stated that more than 20 years have passed after alleged incident and during this period, accused has always remained under trauma, as such, he has already undergone agony of trial. Besides this, he is the sole bread-winner of the family and incase he is sentenced to imprisonment, entire family would be ruined. 5. Mr. Ramesh Thakur, learned Deputy Advocate General while refuting aforesaid submissions having been made by the learned counsel representing the accused, vehemently argued that there is no illegality or infirmity in the judgments passed by Courts below and same are based upon correct appreciation of evidence adduced on record by the respective parties, as such same deserve to be upheld. Mr. Thakur, while inviting attention of this Court to the judgments passed by learned Courts below, contended that both the learned Courts below have dealt with evidence in right perspective and have also dealt with each and every aspect of the matter meticulously, as such, there is no scope of interference by this Court, especially in view of concurrent findings of fact and law recorded by learned Courts below. Mr. Thakur, made this Court to travel through evidence led on record by the prosecution to demonstrate that prosecution proved beyond reasonable doubt that on the relevant day, vehicle in question was being driven rashly and negligently by the accused, as a result of which, one person lost his life. While concluding his arguments, Mr. Thakur invited attention of this Court to judgment passed by Hon'ble Apex Court in State of Punjab versus Saurabh Bakshi, 2015 (5) SCC 182 and stated that no leniency can be shown to the reckless drivers, who, day in and day out, endanger lives of others. Mr. Thakur, further contended that apart from above, this Court has a very limited scope to re-appreciate evidence in present proceedings. In this regard, he placed eliance upon judgment of Apex Court in State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2 SCC 452 . 6. I have heard learned counsel for the parties as well carefully gone through the record 7. In this regard, he placed eliance upon judgment of Apex Court in State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2 SCC 452 . 6. I have heard learned counsel for the parties as well carefully gone through the record 7. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:- “8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.” 8. In the instant case, prosecution, with a view to prove its case, examined as many as sixteen witnesses. After having carefully perused the record, this Court, is of the view that statements having been made by PW-1 C. Rajesh Kumar, PW-3 Sh. Kanshi Ram (complainant) and PW-4 Mr. Hem Dutt (son of deceased Jia Lal Sharma), PW-5 Sh. Avinash Kumar, the eye witness of the incident and PW-13 ASI Desh Raj, are material for adjudication of the controversy at hand. Kanshi Ram (complainant) and PW-4 Mr. Hem Dutt (son of deceased Jia Lal Sharma), PW-5 Sh. Avinash Kumar, the eye witness of the incident and PW-13 ASI Desh Raj, are material for adjudication of the controversy at hand. Perusal of statement of accused recorded under Section 313 CrPC, clearly suggests that he has admitted that he was driving ill fated Maruti Van, at the relevant time and as such, there is no dispute with regard to identity of the vehicle and its driver. 9. Learned courts below while holding accused guilty of having committed offence under Sections 279 and 304A IPC have placed heavy reliance upon testimony of PW-3 Kanshi Ram, i.e. complainant, who stated that on 3.11.1996, at about 11 am, he was on his way to police station Shimla East, one young man suddenly turned vehicle and ran-over a pedestrian, on the basis of which FIR Ext. PW-13/A was registered. As per version of PW-3, he saw a young man driving Maruti Van No. HP-02-4757. Driver had suddenly turned the vehicle and knocked down the pedestrian. 10. PW-4 Hem Dutt, son of the deceased, deposed before the Court that his father, Shri Jia Lal was knocked down by Maruti Van bearing registration No. HP-02-4757, as a result of which, he received injuries. He also stated that Jia Lal, succumbed to injuries. Aforesaid witness, in his cross-examination stated that his father was 67 years of age and he had a good eye-sight. However, he stated that his father used to wear spectacles for the purpose of reading. In his cross-examination, he could not say due to whose negligence, alleged accident had occurred. After having carefully perused the version put forth by this witness, this Court is of the view that no reliance, if any, could be placed upon the statement having been made by him, as he is a hearsay witness, because he had no occasion to witness the alleged accident with his own eyes. Apart from above, it has also come in his statement that his father was hard of hearing and he used to wear hearing aid machine. 11. PW-5 Avinash Kumar, nowhere supported the case of the prosecution, rather, he gave altogether different version of alleged accident, in which deceased Jia Lal lost his life. PW-5, Avinash Kumar, in his statement stated that one mini bus knocked down pedestrian, as a result of which he died. 11. PW-5 Avinash Kumar, nowhere supported the case of the prosecution, rather, he gave altogether different version of alleged accident, in which deceased Jia Lal lost his life. PW-5, Avinash Kumar, in his statement stated that one mini bus knocked down pedestrian, as a result of which he died. Though this witness was declared hostile but, even in his cross-examination, conducted by the learned APP, nothing could be extracted from this witness, from where it could be inferred that he has deposed falsely with a view to help the petitioner-accused. 12. PW-10 Subhash Chand, who happened to owner of the ill-fated Maruti Van, though admitted that police had impounded the van and he had got the same released but, in his cross-examination, he stated that his vehicle did not meet with any accident. 13. PW-13, Desh Raj, Investigating Officer, stated that site of accident was at a distance of 50 yards from the Police Station, Shimla, East. He further stated that shoe and cap of the pedestrian were found below Maruti van and there was pool of blood below and on one side of Maruti van. He further stated that the vehicle was mounted on pavement. In his cross-examination, PW-13 Desh Raj admitted that site of occurrence was not visible from the stairs of Gurdwara, from where PW-3, Kanshi Ram, allegedly saw the accused driving Maruti van, who allegedly hit the deceased Jia Lal. 14. This Court, after having carefully perused material evidence, as has been discussed herein above, sees substantial force in the arguments of learned counsel representing the accused that the learned Courts below have fallen in error while holding accused guilty of having committed offence punishable under Sections 279 and 304A IPC, because, Courts below have not appreciated the evidence its right perspective, as a result of which erroneous findings have come on record. Case of the prosecution entirely hinges upon statement of PW-3, wherein he specifically stated that while going to Chhota Shimla Bus Stand, he was climbing stairs of Gurdwara street, and he saw a young man turning Maruti van. He further stated that driver turned the vehicle suddenly and knocked down the pedestrian. Aforesaid version put forth by PW-3 Kanshi Ram, has been nowhere corroborated by any independent witness. 15. PW-5 Avinash Kumar, who also allegedly witnessed the unfortunate incident, stated that deceased Jia Lal was hit by a bus. He further stated that driver turned the vehicle suddenly and knocked down the pedestrian. Aforesaid version put forth by PW-3 Kanshi Ram, has been nowhere corroborated by any independent witness. 15. PW-5 Avinash Kumar, who also allegedly witnessed the unfortunate incident, stated that deceased Jia Lal was hit by a bus. Apart from above, admission having been made by PW-13 Desh Raj, in his cross-examination, casts doubt with regard to veracity of statement of PW-3 that he saw young man driving ill fated Maruti van at the time of alleged incident. PW-13 Desh Raj, in his cross-examination specifically admitted that site of occurrence was not visible from the stairs of Gurdwara street, but the learned Court below while ignoring material admission having been made on behalf of PW-13, Kanshi Ram placed undue reliance upon the statement of PW-3 Kanshi Ram, who happened to be police official. None apart from PW-3 Kanshi Ram stated anything specific with regard to accident being caused due to rash and negligent driving on the part of accused. 16. If evidence led on record by the prosecution is examined and analyzed carefully, there are only two witnesses, who can be termed to be eye witnesses i.e. PW-3 Kanshi Ram and PW-5 Avinash Kumar. As per PW-3 Kanshi Ram, accident occurred due to rash and negligent driving of the accused. This version is doubtful because of admission having been made by PW-13 Desh Raj, that site of occurrence was not visible from stairs of Gurdwara. PW-5 Avinash Kumar has nowhere supported the case of the prosecution rather, he stated that pedestrian Jia Lal suffered injury after being hit by bus. Apart from above, none of the prosecution witnesses is a spot witness as such no much reliance, if any, could be placed upon their statements, while holding accused guilty of having committed offence under Sections 279 and 304A IPC. 17. True, it is that accused in his statement recorded under Section 313 CrPC, admitted that he was driving Maruti Van at the relevant time but he has further stated that he has falsely been implicated in the case. 17. True, it is that accused in his statement recorded under Section 313 CrPC, admitted that he was driving Maruti Van at the relevant time but he has further stated that he has falsely been implicated in the case. After having carefully perused the judgments passed by courts below, this Court finds that both the learned Courts below placed undue reliance upon the statement of PW-3 Kanshi Ram, completely ignoring statement of PW-10 Subhash Chand, owner of Maruti van involved in the incident, who, in his statement, stated that his vehicle did not meet with any accident. Aforesaid statement having been made by PW-10 Subhash Chand is /was significant especially in view of deposition made by PW-5 Avinash Kumar, whereby he claimed that deceased Jia Lal suffered injury after being hit by bus. It appears that neither there is an attempt on the part of investigating agency to probe involvement, if any, of the bus in the accident, nor the learned Courts below made any endeavour to examine and analyse evidence led on record by prosecution vis-à-vis statement of accused recorded under Section 313 CrPC as well as statement of PW-5, Avinash Kumar. 18. As discussed above, statement of PW-4, Hem Dutt, son of the deceased, is/ was of no relevance while determining fault, if any of the accused, because, admittedly, he was not present at the time of accident, rather, admission having been made by him that his father was hard of hearing, compels this Court to agree with the contention of Mr. Peeyush Verma, learned counsel representing the accused that deceased suffered injury as he failed to notice sound of approaching vehicle while crossing the road. 19. Leaving everything aside, this Court, after having gone through entire evidence led on record finds that no evidence, if any, has been led on record by prosecution with regard to rashness and negligence, if any, on the part of accused. None of the prosecution witnesses, as has been discussed above, stated anything specific with regard to negligence on the part of accused. Similarly, none of the prosecution witnesses stated anything specific with regard to high speed of the vehicle of accused at the time of unfortunate incident. None of the prosecution witnesses, as has been discussed above, stated anything specific with regard to negligence on the part of accused. Similarly, none of the prosecution witnesses stated anything specific with regard to high speed of the vehicle of accused at the time of unfortunate incident. It is not understood, on what basis learned Courts below held accused guilty of offence punishable under Sections 279 and 304A IPC, especially in the absence of specific evidence, if any, led on record by prosecution, to prove rashness and negligence on the part of accused. 20. This Court, is in agreement with the arguments advanced by the learned Additional Advocate General that one person lost his life in the alleged accident, but, simultaneously this Court can not lose sight of the fact that onus was upon prosecution to prove rash and negligent driving, which ultimately led to death of a person namely Jia Lal. In the instant case, this Court has no hesitation to conclude that prosecution has miserably failed to prove on record by way of adducing cogent and convincing evidence that there is/was negligence on the part of the accused. 21. It is well settled that for the purpose of criminal law high degree of negligence is required to be proved before the felony is established. But in the instant case, there is hardly any evidence to establish that accused was negligent at the time of accident. It was incumbent upon the prosecution to prove negligence, if any, on the part of the accused to render him liable to be convicted for offence punishable under charged sections. Prosecution, with a view to prove negligence, if any, on the part of accused, should have led evidence to prove on record recklessness and negligence on the part of accused, and certainly same should be more than normal or ordinary. In the instant case, both the learned Courts below, while placing undue reliance upon the statement of PW-3 Kanshi Ram, came to the conclusion that vehicle in question was being driven rashly and negligently by accused but, at the cost of repetition, it may be stated that no much reliance, could be placed upon the statement of PW-3 Kanshi Ram, in the teeth of candid admission have been made by PW-13 DeshRaj, that site of occurrence is/was not visible from Gurdwara. 22. 22. If, for the sake of arguments, version put forth by PW-3 Kanshi Ram is accepted to be correct, even in that eventuality, there is /was no occasion for the learned Courts below to conclude that vehicle in question was being driven rashly and negligently, because, admittedly, PW-3 Kanshi Ram, has nowhere stated that vehicle was being driven at high speed, rashly and negligently by the accused. In his statement, PW-3 Kanshi Ram simply stated that he saw a young man driving Maruti van, who suddenly turned the vehicle and knocked down the pedestrian. There is not even a whisper, if any, with regard to rashness and negligence on the part of accused. Apart from these witnesses, none of the material witnesses of the prosecution supported the version put forth by the prosecution. Though, PW-4, in his statement claimed that vehicle in question was being driven rashly and negligently but, in his cross-examination, he admitted that he was not present at the site of occurrence, as such, no reliance, could be placed upon his statement, while holding accused guilty of having committed offence under Sections 279 and 304A IPC. 23. Mere bald statements, if any, made by the prosecution witnesses could not be termed to be sufficient to hold the accused guilty of having committed offence punishable under Sections 279 and 304A IPC, as such this Court, is compelled to conclude that prosecution has miserably failed to prove on record rashness and negligence on the part of accused beyond reasonable doubt. 24. It is settled law that a person cannot be held criminally accountable for his rashness and negligence merely because evil consequences flow from his act, rather rashness must be such as to endanger human life or personal safety of others. Similarly, for criminal liability, rashness or negligence must show a disregard for human life or personal safety of others. Question whether an act is criminally rash or negligent is a question of fact, depending upon the circumstances of a peculiar case and as such, needs to be elucidated minutely and with certain degree of precision. In this regard, reliance is placed upon the judgment passed by the Hon’ble Apex Court in Braham Dass versus State of H.P. (2009) 7 Supreme Court Cases 353. The relevant para No. 6 and 8 are reproduced herein below:- “6. In this regard, reliance is placed upon the judgment passed by the Hon’ble Apex Court in Braham Dass versus State of H.P. (2009) 7 Supreme Court Cases 353. The relevant para No. 6 and 8 are reproduced herein below:- “6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the appellant-accused was negligent in any way. On the contrary what has been stated is that one person had gone to the rooftop and the driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the rooftop of the bus. Learned counsel for the respondent on the other hand submitted that PW-1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus. 8. Section 279 deals with rash driving or riding on a pubic way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not (sic) negligence. Similarly, in Section 304-A the stress is on causing death by negligence or rashness. Therefore, for brining on application of either Section 270 or 304-A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved.” 25. The Hon’ble Apex Court in case titled “State of Karnataka v. Satish,” 1998 (8) SCC 493 . The relevant paras of which are being reproduced herein below:- “1. Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a "nalla" on 25-11-1982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka. 2. We have examined the record and heard learned counsel for the parties. 3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty. 4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. 26. Careful perusal of aforesaid judgments clearly suggests that there can not be any presumption of rashness or negligence, rather, onus is always upon the prosecution to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently. In the aforesaid judgment, it has been specifically held that in the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking maxim res ipsa loquitur. 27. The Hon’ble Apex Court in case titled Ravi Kapur versus State of Rajasthan (2012) 9 SCC 285 have held as under: “15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes – one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of ‘culpable rashness’ and ‘culpable negligence’ into consideration in cases of road accidents. ‘Culpable rashness’ is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). ‘Culpable negligence’ is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person’s negligent conduct. [Ref. Justice Rajesh Tandon’s ‘An Exhaustive Commentary on Motor Vehicles Act, 1988’ (First Edition, 2010]. 20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone’s negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as : The event would not have occurred but for someone’s negligence. The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event. Accused was negligent and owed a duty of care towards the victim.” 28. It emerges from the aforesaid judgment passed by Hon'ble Apex Court, that maxim of res ipsa loquitur can only be applied if no direct evidence is available, but in the present case, as per prosecution story, PW-3 Kanshi Ram and PW-5 Avinash Kumar, had an occasion to see the accident but none of these witnesses stated anything specific with regard to rash and negligent driving on the part of accused, as such the maxim of res ipsa loquitur can not be invoked. 29. The Hon’ble Apex Court in case titled “ 2008 Latest HLJ HP 538, have held as under: “4. Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. It is an admitted fact that said Shri Daya Ram had died in the accident caused by the respondent but still it is incumbent upon the prosecution to prove that it was the rash and negligent act of driving to conclude the rash and negligent driving of the respondent. In other words, it must be proved that the rash or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or negligent act of the accused. According to Rupinder Parkash (PW4) deceased was hit by the motor cycle which was in a high speed but the speed is not criteria to hold the act as rash or negligent. The respondent in his statement under Section 313 of the Code of Criminal Procedure has explained that on seeing the deceased, he had blown the horn and he(deceased) stopped on the road. As soon as he reached near him, he immediately tried to cross the road and got hit. His version has been duly corroborated by Hardeep Singh (DW1) who was a pillion rider with him. Ajay Kumar (PW-1) has admitted this version that the respondent had blown the horn and Daya Ram on hearing it, had stopped for a while. In these circumstances, if a person suddenly crosses the road, without taking note of the approaching vehicle and its driver may not be in a position to save the accident, it will not be possible to hold the Driver guilty of the offence. In the instant case, the deceased knowing fully well at least the approaching vehicle stopped on haring the horn while crossing the road but when the motor cycle reached near him, he darted before it and the accident took place. Thus in my opinion the prosecution could not prove the offence charged against the respondent beyond reasonable doubt that the respondent was driving the vehicle rashly or negligently. Therefore, in these circumstances, the learned trial Court had rightly acquitted the respondent of the charges framed against him. Thus in my opinion the prosecution could not prove the offence charged against the respondent beyond reasonable doubt that the respondent was driving the vehicle rashly or negligently. Therefore, in these circumstances, the learned trial Court had rightly acquitted the respondent of the charges framed against him. As such, no interference in the impugned judgment of acquittal is called for. Accordingly the appeal is dismissed. The respondent is discharged of his bail bounds entered upon by him at any stage of the trial.” 30. This Court is fully conscious of judgment of Hon'ble Apex Court in State of Punjab versus Saurabh Bakshi 2015 (5) SCC 182 , wherein it has been held that no leniency should be shown to reckless drivers. The Hon'ble Apex Court has observed as follows:- “25. Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the “Emperors of all they survey”. Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as “larger than life”. In such obtaining circumstances, we are bound to observe that the law-makers should scrutinize, relook and revisit the sentencing policy in Section 304-A IPC, so with immense anguish.” 31. There can not be any disagreement with the concern expressed by the Hon'ble Apex Court in the aforesaid judgment with regard to carelessness/recklessness of the drivers especially under the influence of alcohol. But in the instant case, as has been discussed above, prosecution was not able to prove beyond reasonable doubt that ill fated vehicle was being driven by accused rashly and negligently, rather, version put forth by prosecution appears to be untrustworthy in view of material contradictions in the statements of the alleged eye witnesses i.e. PW-3 Kanshi Ram and PW-5 Avinash Kumar, and as such, this Court sees no application of aforesaid law laid down by the Apex Court in the instant case. 32. After bestowing thoughtful consideration to the statements of witnesses on record and law as cited above, I find merit in the present petition, which is accordingly allowed. 32. After bestowing thoughtful consideration to the statements of witnesses on record and law as cited above, I find merit in the present petition, which is accordingly allowed. Judgment dated 29.12.2010 passed by the learned Sessions Judge, Shimla in Criminal Appeal No. 24-S/10 of 2008, affirming judgment/order of conviction dated 22.5.2008/26.5.2008 passed by learned Judicial Magistrate 1st Class, Court No. II, Shimla in case No. 42/2 of 2000/96, is set aside. Accused is acquitted of the offences under Sections 279 and 304A IPC. Fine amount, if any deposited by the petitioner shall be refunded to him. 33. Bail bonds, if any, furnished by the accused are discharged. Pending applications are disposed of.